An Overview of the Juvenile Delinquency vis-à-vis Juvenile Justice System in India

Adolescence is when the very worst and the best impulses in the human soul struggle against each other for possession.[1] Children are uncut diamonds and it is upon us to carve them into finer beings. As Nelson Mandela rightly quoted, “History will judge by the difference we make in the everyday lives of the children”. Due to their sensitive and peculiar characteristics, children ought to be the prime focus of all the welfare and development policies of a State. Howbeit, the escalating rate of juvenile delinquency proves otherwise.

Despite articulate endeavours from the authorities, the majority of the children in India grow up without a sheltered environment. Juvenile delinquency is one such phenomenon which is the result of the inadequate learning opportunities provided to the children. The tiny hands which are supposed to hold pens are often forced to hold tools like daggers and knives. Trying the juvenile offenders along with the adult offenders proved to be detrimental to the mental health of the children.

This led to the introduction of the novel concept of juvenile justice which derived its life breath from the notion that the problems relating to juvenile delinquency cannot be amenable within the framework of the traditional criminal jurisprudence[2]. We can say that this innovative system is one step ahead to comply with the Constitutional mandate about care, protection and welfare of the children enshrined in the Part III and IV of the Constitution of India.

Under this system, a juvenile delinquent is a young person, particularly a teenager under the age of eighteen, who breaks state law by committing a crime owing to various factors. Family plays a huge part in the development of an adolescent and[3] a child who is grown up in a hostile aggressive parenting atmosphere becomes an easy prey to criminality[4].

Moreover, sometimes, people (mostly young ones) just want to ‘fit in’, be ‘one of them’ and not disappoint. They want their ‘friends’ to like them and to be perceived as being cool. This confusing and conflicting[5] and is a predominant cause for delinquency. Sometimes, even the schools, which are considered as temples of education play a part in transforming a child into a delinquent.[6]

In this day and age, India is home to almost 440 billion children who are below the age of 18 years.[7] It doesn’t help the cause that delinquency in some cases among the groups of children above a certain age has almost become common if not natural. Juvenile delinquents have always been treated as a special class of offenders. This is because they are still children who are easily prone to turning to the easy, unethical recourse rather than the good.

Therefore, the authorities, after giving due consideration to the sensitivity attached to the issue, are constantly striving to develop a comprehensive system of justice encapsulating the spirit of reformation and rehabilitation rather than retribution and deterrence so that the children involved in the peril are not intimidated and overwhelmed.

Who is a Juvenile under the law?

The term ‘Juvenile’ refers to any person, who has not attained the age of majority. However, under the law, the criteria for determining a juvenile may vary from jurisdiction to jurisdiction.[8] The definition of juvenile delinquency underwent substantial changes since its inception owing to the influence of International obligations of India. The primary concern with regards to the definition is the determination of the age of the child to fix the criminal responsibility.

The right approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility. Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally.[9]Although the Indian law pertaining to the age of the juvenile went through a plethora of reforms, as of today, a juvenile is defined as a person who has not completed 18 years of age.[10]

Development of Juvenile Justice System in India

The makers of the Constitution understood the importance held by children towards the nation and made a conscious effort to provide for their welfare and nourishment. For instance, Article 15(3) mandates the State to make special laws concerning children. Further, the Directive Principles enshrined in Part IV oblige the state to give the children ample opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and they must be protected against exploitation and moral and material abandonment.[11]

The criminal justice system of our country also contains special provisions to deal with the juveniles in a conflict of law. The incentive behind this notion is the principle of ‘doli incapax’ (aperson isincapable of forming the intent to commit a crime, especially by reason of age) enshrined in Section 82 and 83 of the Indian Penal Code and Section 27 of the Code of Criminal Procedure.

The juvenile justice system of India has witnessed constant changes over time. India had a robust juvenile justice system even before achieving independence in 1947. Juvenile offenders were always treated with extra care and caution owing to their age mental capabilities. This section of the Article makes a comprehensive study of the various laws put in place to curb the menace of juvenile delinquency and at the same time seek to rehabilitate the juvenile offenders.

Apprentices Act, 1850

The Apprentices Act can be viewed as the first attempt towards the enactment of special provisions to deal with children in conflict with the law. This act gave power to the Court to bind the children between the age of 10-18, when found guilty of petty offences, or when otherwise in destitute circumstances as apprentices[12]. It also provided that the children under the age of 15 who were sentenced to imprisonment may be sent to reformatory school rather than a regular prison[13].

However, this act did not combat the issue of juvenile offenders comprehensively and, as a result, several states enacted their state legislature to deal with this mounting issue. Madras, for once, enacted the Madras Children Act in 1920 followed by Bengal Children Act in 1922, Bombay Children Act in 1924 and so forth. In fact, up until the early 1980s, almost all the states had their own Children’s Act except Meghalaya[14].

An attempt was made to unify all the laws by enacting the Children Act, 1960, Central legislation. Although the Act was revolutionary to an extent that it initiated the formation of two distinct bodies to determine matters involving “children in conflict with law” and “children in need of care” known as the Children’s Court[15] and Child Welfare Board[16] respectively[17], the need for uniform legislation for the whole country had been expressed in various forums including the Parliament.[18]

The Supreme Court took cognizance of the delicate situation in the case of Sheela Barse v. Union of India[19],and suggested that instead of each state having its own Children’s Act different in procedure and content from the Children’s Act in other States, it would be desirable if the Central Government initiates Parliamentary Legislation on the subject, so that there is complete uniformity regarding the various provisions relating to children in the entire territory of the country[20].

Juvenile Justice (Care and Protection) Act, 1986

It was felt by the Legislature that a uniform juvenile justice system must be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country.

The Object and Purpose of the Juvenile Justice Act of 1986 were to lay down a uniform framework for juvenile justice in the country and to provide for a specialized approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the development needs of the child found in any situation of social maladjustment[21]. This enactment which replaced the Central Children Act of 1960 and all the other state enactment was the first unified step with regards to the care and protection of children.

While it retained the scheme and primary features of The Children Act,1960[22], for instance, the age of the juvenility remained the same (16 years for boys and 18 years for girls); The new feature which was introduced under this act was that the juveniles were divided into two broad categories: (a) Delinquent Juveniles (b) Neglected Juveniles[23]. Howbeit, it did not elaborate more upon the aforesaid categories.

Juvenile Justice (Care and Protection) Act, 2000

The primary drive and object behind this amendment were to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment in consonance with Article 15(3), 39(e) and (f), 45 and 47 of the Constitution of India and the United Nations Convention on Rights of Child ratified by the Government of India on 11th December 1992. The law was, thus, re-enacted bearing in mind the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990, and all other relevant international instruments.[24]

This revolutionary Act of 2000 brought in uniformity in the determination of age irrespective of the gender i.e. a juvenile, under the Act, is a person who has not completed the age of 18 years.[25] The Act also divided the children into two broad categories namely child in conflict with law and child in need of care and protection.

The former refers to a juvenile who is alleged to have committed an offence and is kept in the observation homes[26], whereas the latter refers to a child who is found without any home and any ostensible means of subsistence, or whose guardian has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child etc.[27] and is kept in the children home.

The act also led to the establishment of the Juvenile offender’s Court known as the ‘Juvenile Justice Board’ constituting a bench of one Magistrate and two social workers[28] and a child welfare committee[29]. In an attempt to reform the juveniles, the act also seeks to establish after-care organizations to take care of juveniles or the children after they leave children homes for the purpose of enabling them to lead an honest, industrious and useful life[30].

The aftermath of the Nirbhaya rape case

In a shocking turn of events, on one December night in 2012, a young woman, popularly known as Nirbhaya was brutally gang-raped and murdered in a moving bus while returning home from work along with her friend. The barbarous act, which led to her death shook the collective conscience of the nation and led to massive protests against the inaction by the authorities. However, amongst all the brutality, what came as a shock to many was the involvement of a juvenile, who was a few months away to become 18 years.

The juvenile was the one who was involved in the most brutal part of the crime when he struck an iron rod into the victim. Naturally, the accused was tried and convicted separately from the other co-accused under the juvenile justice system rather than the regular criminal justice system[31]. This sparked nationwide protests and invited debates from all corners of the country calling for an amendment to the Juvenile laws to provide for the horrendous crimes committed by the juveniles between the ages of 16 to 18 years.

As a result, the Juvenile Justice (Care and Protection) Act, 2015 was enacted and the age of the juvenile was reduced from 18 to 16 years. The Act also empowered the Juvenile Justice Boards to decide whether the juvenile is to be sent to rehabilitation home or to be tried as an adult[32].

Although the Act is hailed as progressive by the majority of the people, certain Human and Child Rights Activist feel that the Amendment is harsh and arbitrary as it differentiated between children placed under similar situations.

However, we need to comprehend that every child is different. Applying a strait-jacket formula to determine the criminality would be unfair to society as a whole. Therefore, apart from a few criticisms, the act is generally deemed to be a perfectly balanced one keeping in mind the rights of a juvenile on hand and the duty towards the general public on the other.

Conclusion

No civilized society regards children as accountable for their actions to the same extent as adults. The wisdom of protecting young children against the full rigour of the law is beyond argument. The difficulty lies in determining when and under what circumstances should it be removed is what renowned professor Colin Howard believes. It is a universally accepted gospel that the early years comprise the most significant phase in the life of a child.

Correction, care and protection are needed in this phase of life so that he/she can become a good human being.[33] Concern about juvenile delinquency is widely shared by state officials, by the public and by scholars. Cardinally, the emphasis must remain towards preventing juveniles from becoming repeat offenders and finding the best ways to achieve that.[34]

As far as India is concerned, apart from the specific legislation enacted to protect and safeguard the juvenile offenders from the regular trials and court proceedings of the criminal justice system, the Constitution of India and the criminal legal system also provide certain privileges and incentives to these diverted children so that they may reform themselves and prove to be an asset to the nation.

At the same time, the Nirbhaya incident and the many others after it proved that it is extremely detrimental to try a rapist of 16 or 17 years as a juvenile rather than an adult. The age cannot always act as a get-away to commit such diabolical acts. Therefore, it is incumbent to maintain a proper balance between the rights of the juvenile accused and the victims of their cruelty.


[1]  G. Stanley Hall, <https://www.goodreads.com/author/quotes/8566516.G_Stanley_Hall> Accessed on 09/06/2020 at 14:26 HRS.

[2] Vedkumari, The Juvenile Justice in India: from welfare to rights, New Delhi: OUP. p1 cited in Satyender Verma and Laxman Singh Rawat, Juvenile justice system in India: An overview, International Journal of Law, Volume 4; Issue 3; May 2018; Page No. 23-29.

[3] What causes delinquency in juveniles? How to deal with it, (Enkivillage), <https://www.enkivillage.org/causes-of-juvenile-delinquency.htm> Accessed on 09/06/2020 at 15:24 HRS.

[4], Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 09/06/2020 at 16:22 HRS.

[5] Satyender Verma and Laxman Singh Rawat, Juvenile justice system in India: An overview, International Journal of Law, Volume 4; Issue 3; May 2018; Page No. 23-29, < www.lawjournals.org> Accessed on 11/06/2020 at 17:39 HRS.

[6] Shipra Lavania, Juvenile Delinquency, (1983) Pub. by Rawat Publications, Jaipur, p.1920.

[7] Karnika Seth, Protection of Children on Internet, 06 (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2015 Edition).

[8] STA Law Firm, United Arab Emirates: International Perspective on Juvenile Justice, (Mondaq, 29 March 2019),<https://www.mondaq.com/crime/793010/international-perspective-on-juvenile-justice#:~:text=The%20United%20Nations%20Standard%20Minimum,is%20different%20from%20an%20adult.%22> Accessed on 09/06/2020 at 16:06 HRS.

[9] Commentary on Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), Adopted by General Assembly resolution 40/33 of 29 November 1985, <https://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf> Accessed on 09/06/2020 at 16:01 HRS.

[10] Juvenile Justice(Care & Protection of Children) Act,2015, Section 2(12).

[11] Article 39(f) of the Constitution of India, 1950.

[12] Srekala K.K., An Assessment of Educational and Vocational Programmes of Juveniles and observation homes in correcting the behaviour of Juvenile Delinquents, Chapter II- Juvenile Delinquency: An Overview, 2007, <https://shodhganga.inflibnet.ac.in/bitstream/10603/7114/14/14_chapter%202.pdf> Accessed on 10/06/2020 at 16:46 HRS.

[13] Juvenile Justice Amendment Act-Regressive step, (Frontline, 22 January 2016), <https://frontline.thehindu.com/cover-story/regressivestep/article8068317.ece#:~:text=The%20Apprentices%20Act%2C%201850%2C%20was,of%20sending%20them%20to%20prison.> Accessed on 10/06/2020 at 16:48 HRS.

[14] Srekala K.K., An Assessment of Educational and Vocational Programmes of Juveniles and observation homes in correcting the behaviour of Juvenile Delinquents, Chapter II- Juvenile Delinquency: An Overview, 2007, <https://shodhganga.inflibnet.ac.in/bitstream/10603/7114/14/14_chapter%202.pdf> Accessed on 10/06/2020 at 16:46 HRS.

[15] Section 2(f) of The Children Act,1960.

[16] Section 4 of The Children Act,1960.

[17] Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 09/06/2020 at 16:22 HRS.

[18] Introduction to the Juvenile Justice (Care and Protection) Act, 1986, <http://bathindapolice.in/files/JuvenileJusticeAct1986.pdf> Accessed on 10/06/2020 at 17:19 HRS.

[19] Sheela Barse v. Union of India, (1986) 3 SCC 632.

[20] Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 10/06/2020 at 17:05 HRS

[21] Statement of Object and Reasons to the Juvenile Justice (Care and Protection) Act, 1960, <http://bathindapolice.in/files/JuvenileJusticeAct1986.pdf> Accessed on 10/06/2020 at 17:19 HRS.

[22] Ved Kumari, Juvenile Justice: Securing the Rights of Children during 1998-2008, 2 NUJS    L. REV. 557, 558 (2009).

[23] Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 10/06/2020 at 17:05 HRS.

[24] Aim and Object of the Juvenile Justice (Care and Protection) Act, 2000, <http://odishapolicecidcb.gov.in/sites/default/files/Juvenile%20Justice%20%28Care%20And%20Protection%20Of%20Children%29%20Act%2C%202000.pdf> Accessed on 10/06/2020 at 19:56 HRS.

[25] Section 2(k) of the Juvenile Justice (Care and Protection) Act, 2000.

[26] Section 2(l) of the Juvenile Justice (Care and Protection) Act, 2000.

[27] Section 2(d) of the Juvenile Justice (Care and Protection) Act, 2000.

[28] Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 10/06/2020 at 17:05 HRS.

[29] Section 29 of the Juvenile Justice (Care and Protection) Act, 2000.

[30] Section 44 of the Juvenile Justice (Care and Protection) Act, 2000.

[31] Mukesh v.State (NCT of Delhi)(2017) 6 SCC 1.

[32] Anubhav Pandey, Challenges to Juvenile Justice Laws in India, (Blog IPleaders, 12 September 2018), <https://blog.ipleaders.in/juvenile-justice-2/#_ftnref6> Accessed on 10/06/2020 at 12:18 HRS.

[33] Simreet Kaur, Abuse of Juveniles in conflict with the law with special reference to the Juvenile Justice (Care and Protection) Act, 2015: A critical analysis, Lovely Professional University, May 2017, <http://dspace.lpu.in:8080/jspui/bitstream/123456789/852/3/11501994_5_4_2017%2011_11_00%20AM_full%20docum.pdf> Accessed on 11/06/2020 at 15:03 HRS.

[34] Milana Todorovic, International Instruments on Juvenile Delinquency, Reactions to Juvenile Offences, and Harmonisation with National Legislations: The Case Studies of Serbia and Slovenia, University of Ljubljana, 2016/2017,<https://repository.gchumanrights.org/bitstream/handle/20.500.11825/595/Todorovic.pdf?sequence=1&isAllowed=y> Accessed on 11/06/2020 at 15:07 HRS.

Nimrah Ali from School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai

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